tv Influence of the Reconstruction Amendments CSPAN January 16, 2016 6:00pm-6:51pm EST
visit harriet beecher stowe's house, you are going to have an experience unlike many other historic house museums. learn more about hartford, connecticut, and the other stops in our tour at c-span.org. you're watching american history tv. all weekends, every weekend, on c-span3. next, historians and legal scholars debate the influence of the 13th and 14th amendments on modern american society. these were ratified during the reconstruction era and out with rights for freed slaves and african-americans in general. the national constitution center hosted this 45 minute of and. >> good morning. join jeffreyto rosen and welcoming you to this program. i am jeremy fogel, the director
of the federal judicial center. this is the second year that we have done a collaborative program with the national constitution center and it is really a highlight of our academic year. jeremy: they do such great work in public education and i think we, as federal judges are hungry for the kind of historical perspective that we get from these collaborations. ont year we did a seminar the legacy of james madison and this year we are doing this seminar on the reconstruction and i want to thank the ncc for their work with us. we are very grateful. we will pick up where the last panel left off and talk about the framingd after of the reconstruction amendments and take us up to the present time. then we will follow that up with a third panel with a couple of federal judges talking about the current resonance of the
reconstruction amendments to them in their work. with me for this panel are two very accomplished speakers in this owner. to my far left is david kennedy who is a professor of history at stanford university. a pulitzer prize winner, he has written several very well-received and popular books about american history. so, he will talk about this time and next to me is heather mcdonald from the manhattan institution. is a social commentator, investigative journalist, trained as a lawyer. she is focused her attention on the modern effects of racial discrimination and prejudice in our past and where they had left us today -- and what kinds of social policy choices we had to be making with regard to that. with want to start
professor kennedy. just ask you to speculate if you would, if the people who framed the reconstruction amendments were here, what would they regard as their greatest successes and their greatest disappointments? that is not a in the weeds question. [laughter] we've had enough weeds, we will say out of the weeds here. prof. kennedy: i will try to get to that. before i address that question correctly, i want to touch on something in the last session that i thought was insufficiently developed, and that is the way that the persistence, stubborn, structural issue of federalism underlies all of this discussion. it actually has very specific historical roots, not just in reconstruction, but the civil war itself because it was lincoln's theory that the seceding states had never left
the union. but at the end of the war, there were various opinions about how to regard these surrendered confederate states. people like charles and others regarded them as conquered provinces who had, by their secession, lost other privileges and rights in the american union and therefore could be reconstructed from the bottom up. others regarded them as disorganized state. they still retained the rights and privileges of statehood, but they were disorganized. others thought that maybe they reverted to something approaching territorial status. and the federal government have the right to rearrange their political life and structures and institutions, as it would a territory. that debate about exactly what was the status of the confederate states, how they were to reenter the union, raised these deep, troubling questions of constitutional interpretation about what is the nation -- the nature of the
relation to the federal government. this plays out, it seems to me, throughout all the episodes of writing and drafting the 13th amendment and 14th amendment and 15 amendment. thatmmary view of it is, on close examination of the drafting process and the judicial interpretation of the amendments, what is striking is how there was a struggle to defer to a traditional idea of the states as the constituent elements of the union and to give them as much leeway and scope as possible. for their own decision-making, when they reentered the union. it was very specific conditions of approving the amendments before -- especially the 14th amendment -- he for readmission. the pattern of deference to the states, it seems to me, is obvious in the drafting process of reconstruction and becomes ever more evidence as the 19th century goes on. to about original question, it that in a balance
and summary way, that the drafters of the amendment's would have been on one hand, impressed with, in a formal sense, impressed with how the judicial interpretation of the amendment's for the rest of the 19th century continue the tradition of deference to states rights. in a less formal way, probably quite dismayed that that deference meant to some of the higher political objectives of the amendment, which was to give full citizenship rights to emancipated black men, was frustrated. jeremy: a way of restating that is the amendments really were not a fundamental change in the basic federal structure of the country, at least they were not intended to be. but, what the framers were hoping for was within the same federal structure that the emancipated slaves, at least the certainly will
rise that they did not have a slaves. success is the preservation of federalism and the failure was that the right to not get delivered. prof. kennedy: i think that is a pretty good summary statement of what happened. shedding of what i will call the national commitment, nudges just the judiciary's commitment, the national commitment to protecting the rights of one -- secure,one with our that progresses further and further to get to cases like plessy versus ferguson and is clear that not only the federal judiciary and federal government and the nation as a whole had since the project of trying to truly integrate black citizens into the general social fabric. ,eremy: this raises a question which we will probably come back to what the judges panel, as well, to what extent was the
judiciary the cause of that and to what extent was the judiciary's decision-making and effective that? you can start with slaughterhouse, but then there is a whole other series of cases including some of the ones that you mention. prof. kennedy: it is pretty hard to jesus apart in any fair judgment. not respectively on the judges years, but there could be some truth to the old maxim that the courts generally reflect at a macro level, some degree of public opinion. so the courts as change agents -- i think we should be cautious about investing too heavily in that notion. i would lay my instance on the failure of the national commitment to the friedman -- the freed men. the court smeared and reflected that social attitude. jeremy: they were not under any
social pressure to construe these amendments differently? prof. kennedy: of course, there was some social pressure. the abolitionists did not glad business entirely after the 13th amendment. there was still voices supporting black rights. blackrse, there were people asserting these rights, as well. the fact is, for all kinds of reasons, emancipated black americans had great difficulty organizing with sufficient political affect, to really press their case. that did not really happen until the 20th century when you have an organized civil rights movement. jeremy: in some of the reading that i did to get prepared for this program, one of the things that really impressed me was that other than a few radical abolitionists, there really wasn't a big push for social fact, evend that in
the people who are pushing for legal rights for emancipated slaves were not big believers in social quality. in fact, social equality was a very out-of-the-box type of position back then. prof. kennedy: again, even lincoln, is on the record of advocating forof social rights. but full civil rights, political rights, that is a different story. there's something as i want to touch on the last session which might be worth revisiting briefly, because there was another constituency, a group in american society, which in some ways provided, i don't articulate this was, but it's early provided at least some kind of a touchstone for stopping short of full civil rights as the program for emancipated black americans and that was women. women do not have the right to vote and in fact, it was a point of contention between feminists and the drafters of the 15th
and women were enjoying some measure of social membership from civil rights, but not the ultimate privilege of suffrage. there was a kind of model for the idea that emancipated blacks might be granted partial citizenship rights, more or less on the model of women. that, in some sense, that tension made it more difficult to get over -- i seem to recall from history that there was a terrible economic downturn in 1873 and it lasted a really long time. do you think that that was a critical factor, as well, part of the abandonment of the goals of these amendments was --? prof. kennedy: i think it played some role.
it was widely thought to be the worst economic downturn in american history up to that time. we were about to see some bigger ones in the 1890's and of course the 1930's. but yes, i think that play some role in diverting national attention elsewhere. i should tell you, i first that this matter many years ago in graduate school. my great mentor was mr. woodward who was a great historian of segregation and the new south. martin luther king jr. called his book the bible of civil rights. it was the history of how segregation got fastened on the south as a judicially sentient business. he never stopped emphasizing that the failure of the promises of reconstruction -- at the promises of reconstruction and the civil war was full citizenship for a metadata blacks -- he never stopped emphasizing that the principal
responsibility for that failure lay in the failure of the elite in american society. to really step up to their declared values and make things happen. jeremy: so that leads right into a follow-up to the point that you made earlier, that you think that the decisions of the court immediately after the amendments were adopted to a large extent reflected what was going on in society rather than strong philosophical views on the part of the judges. once this all happens, and you get slaughterhouse and you get cruikshank and you get the cases reconstructione -- for a long time. how do you explain the courts in action to the extent that it was an action, and i think the last panel mentioned that there were some examples of successful prosecutions, particularly in the voting rights area, how do you see that? prof. kennedy: it seems to me that the pattern of deference to
seems to meity, it that it is quite conspicuous in the moment of drafting the mmx, themselves. it is hardly surprising that that element gets judicially ratified as you go forward. a series of decisions that gave the state action to do some things that today we would regard as pretty noxious. that is one. secondly, to use a word that is very current in the county where california, you look long and hard for a supreme court decision or court decision and this time that is disruptive . unlike, the brown decision, which is truly disruptive. it really rubbed the nation's nose in the fact that it has to live up to its professed values. aremy: we'll get to brown and second, but before we get to that, we have plessy.
would that be the embodiment of what you just said? that nobody wanted to be disruptive. that court to not want to be the one to say otherwise. prof. kennedy: again, to use a phrase that has been used around this morning, the legal fiction of equality was that there is a gesture honoring that in the decision, separate but equal. equal, the separate. that probably would've been even more strongly fictionalize. by thective observer 1890's could really with a straight face of certain that separate facilities were equal, in fact, that is what the brown decision says, separate is inherently unequal. the idea that we fairly naturally a firm today. so yes, i think the plessy whation simply ratified
was, by that time, a very deeply rooted attitude and outlook and the society. irrespective of what was intended or not intended, the court would say, are you ready to bite the bullet on such a quality and the answer was no. so, i want to get to brown, but before we get to brown, i want to sidetrack a little bit and this is as close as i'm planning to get to the weeds. the slaughterhouse case basically made the privileges and immunities clause a very weak, if not nonexistent, source of rights. a what evil instead was sensitive new process doctrine that kind of came out of nowhere and it showed up in the locker case in particular. we are still living with it. as recently as the last supreme court. to what you attribute that?
as a historian, looking at the way that the law has evolved, how did that come about and why? prof. kennedy: as you rightly say, again, this gets a little weedy for me, and i would refer to people better with case law, but that case is the one that really truly makes the due process doctrine effective. for the next 30 years, it is known as the lochner --. how does that happen? not least of all to the persistent legal argumentation of the justice who first formulates the idea, persistently using it and defense and eventually convinces the majority of his colleagues that this is a proper way to do business. another way to think about it is, the substance of the due process doctrine as it gets applied actually serves a fueling of the industrial development of the
united states and the late 19th-century, the moment of the greatest, most rapid industrialization. you could say, going out on a limb here, putting it this way, that the courts of the purpose ofprotecting the development american capitalism at a moment of its critical formation, when it really was trying to transform the whole economic basis of the country. as much as we might not like did have at protective function and probably, argued lee, contributed to the growth of the industrialization process. jeremy: talking with people before the program, they say was kind of a workaround. if you have privileges and immunities, you could just use that. but you did not. and meanwhile, the economy is doing with the economy is doing and you need some way to make that happen. so, that is where we got sensitive due process from. -- sensitive due process from. prof. kennedy: the extent that
there's anything to this at all, and that dimension, the courts also reflected some kind of , that itpublic opinion was in the national interest to energize the industrial revolution as rapidly and robustly as possible. jeremy: let's get this to brown. the best way to look at brown is something that the world had changed? prof. kennedy: well, as a historian, and not a historian of the courts, particularly, but a historian of more general -- that we as a society came to a different outlook about the meaning of equality and the practical effects of the segregation regime had been in place. again, i go back to my mentor, who in his memoirs said something about how future generations will marvel at how their forebears could daily make their way through this and logical museum of clearly a
rational social practices and behaviors. to jim crow, of course. i think eventually, the irrationality and the nature of jim crow and the way it contradicted declare national values just became quite weighty on the national conscience. mlk's appeal was always, we must live up to our declared values, not that we need to change our values, we've had these professed values for a couple of centuries, let's make them a reality. that proves very effective. there is another historical consideration here, too, that maybe has a place in this discussion. essentially, the federal government does out of the business of trying to promote the cause of black citizenship and equality and integration from the end of reconstruction until world war ii. a fairly well-known, but well
known in this context, i suppose, item, is franklin roosevelt's executive order of equal accesscreed and employment during world war ii at defense plans. another part of it, was he was , rose togive equal blacks in the military and he refused that, but he did create an equal employment opportunity commission to oversee their treatment of african-american and defense plans. -- a, they use the word great migration out of the south. african-americans seeking employment at defense plants and the north east and west coast and the midwest. in some ways, i think it is one of the foundational pillars that energized the civil rights movement after the war. the big demographic shift, feel by the war. aided and abetted by executive
order 8802. the african-american committee gets to purchase outside of the south where they have more political leverage and they can organize on a more effective basis. jeremy: and/or black soldiers who fought in one or two. prof. kennedy: not many. there was case law even prior to brown that was starting to move in that direction. it is fascinating and brown of course opens up a whole era of expansion of rights and the federal role. prof. kennedy: and what constitutes a right. the rights revolution also figures into this, not only that the core right to full citizenship and the right to vote, equal access to all facilities. it is now made a reality, but then we start to -- i was going to say invents, but that is not the word i want. we start to identify other rights. jeremy: certain rights are
suddenly recognized which were not recognize before. he wrote to justice frankfurter that he actually thought that brown was wrongly decided. but that he could not -- yet been on the supreme court, he probably would have decided at the same way. [laughter] --emy: the tension between and the right thing to do, the right thing to do emerges over time. the important the valuesi think is and society's identification of values and the strength of which they hold them in a certain -- that changes over time. jeremy: let me turn to heather
mcdonald. we were talking a while ago in preparation for this and you are saying that there really is not much issue, that the time between the adoption of these the beginning of the modern civil rights movement after world war ii was a pretty sorry time in terms of equality of treatment for african-americans and other minorities. but, then, we have been in this time for the last 70 years or so of pretty dramatic social change. yet been critical of a number of policy responses that we have undertaken as a society in light of that. the history happened in the history was very tragic and hard on lots of people, but the question is, what you do about it, what is the way forward?
do want to sentiment about that as we start the second part of this? heather: if there's is any meaning to american exceptionalism, it is this of thedinary conjunction most beautiful and arcane and judicial law legal interpretation that gets you in the weeds. superimposed on top of some of the most brutal and ugly sentiments that human beings can possess. of aamerican history ofstant rereading foundational documents with the pressures of either trying to hierarchyn oppressive or break that up, is an extraordinary fact.
i'm much or any other country has that odd juxtaposition of some of the highest capacities of human reason to engage with language and these arcane questions of original intent, whether there can be such a thing with a document that has been drafted by so many participants. that interaction with the desire to enslave and then continue eight -- continue a de facto system of enslavement, i would relegate they to -- upony to a simply developing social change, because i think that obviously the discourse that they engaged in with such serious care is
part of american history and constitutional identity. one sort of falls on one's knees before the minority of american history and the -- the and normandy of american history on the constant effort to undermine the promise of our founding ideals. one needs to be very careful in declaring a point where the issues are no longer ones that can be decided by judicial interpretation or even in deep governmental power. free enoughurselves that we can talk about other issues that may be preventing the promise of equality, but i as a essential as
the long process of judicial hermeneutics have been to -- the evilrom our and the hypocrisy of this some efforts now to try and make sure that we have the quality of results are not working well and i would point out, for one example, racial preferences. which is obviously, a continuing discussion at a constitutional level and one that is addressed with an extremely arcane jurisprudence of standards of review. what strictabout scrutiny should mean and discussions, as well, about problems of reverse whether aion and
preferential policy goes beyond the promise of equal treatment under the laws. is cuttingnterest through what i think has become perhaps a stale and still made a discussion about that and look simply at the practical effects of racial preferences. i have been very persuaded by a doctrine, not a doctrine, not a legal doctrine, it is really an empirical theory, that has come out of the ucla law school. that in hishe fact observation, racial preferences actually hurts their intended beneficiaries, above all, in an academic context. that by catapulting people into
academic environments for which they do not share the qualifications of their peers, you are not actually doing them a favor. you are putting a burden on them. if m.i.t. decided that it needed a lot more females and their physics department and reached out and said, ok, heather mcdonald, you are admitted to m.i.t., i would fail immediately. this would not be something that being able toe in absorb a scientific doctrine. i would be much better off in a state school where the teaching was directed at my capacities. and where i was in a group of people that would have the same
backgrounds, academic background and the same needs. way, richard sander has looked at the academic outcomes, especially in law schools, students who have been admitted under racial preferences and has found that those who have been, do more poorly on bar passage rate and their gpas than students have been admitted under a colorblind standard. what my interest has been, as a journalist, is to go out and actually look at how social policies are working in practice and whether they meet their intended goals and what i often find is that they do not. jeremy: something you said at the very beginning, not only interested me, but is one of the reasons why we wanted to have this event. you say we need to
look at things differently, that the debate has become stale or stratified. it is inevitable that that would happen, right? because you have 150 years of history where things did not work out the way people intended them to. all of thedespite wonderful things about her country and a better society, it is not our proudest moments. i think everyone can kind of see that. but then, you actually try to talk about what should we be doing. is, whatar you saying you are proposing does not fit the conventional wisdom or does not fit into the perceived wisdom, that your motives are suspect. that the content of what you are saying kind of gets lost in the what side are you on, do you really understand what this experience is about?
what it would mean to have grown up in the jim crow south or something like that. i was talking to people about it. it is hard, because unless you , you feelredibility the experience and you understand something about it, it is very hard to say, maybe what we are doing is not the best thing. if people are saying, maybe we should be doing something else, having lived the discrimination themselves. what do you think about that? hackley try to bring those threads together? prof. kennedy: -- heather: you are saying that he attends undermine critics by saying that they do not have the skin colorthe qualifications to address certain issues, and that is a tough argument to withstand and one can only argue for the sake of empirical evidence.
drawing on our ideal, which is that skin color should not matter to one's rights to participate in a discourse. obviously,o say, there is no monopoly anywhere on any particular point of view. i have written a lot about policing, which is obviously an issue right now, which is in the forefront of national attention. thatnk i can fairly say the discourse on policing today monolithic inirly the critical views of the police. that, from the president on down, the assumption is that the police really are a problem. still,ey carry with them the prejudice and misuse of
power that has characterized so much of american history and so many american institutions. when i have done is go out into the community's where this debate has its origins. and find very different voices. in harlem or central safe when theeel police are there and only when the police are there. example, i met a cancer amputee in the bronx. who said the only time that she felt safe to go get her mail in the lobby of her apartment
building was when the police were there. she said, please, jesus, send more police. the people in her neighborhood bagged to have a police surveillance watchtower on their corner. hadn, they said, they have it before and they said that was the only peaceful summer that we had. police, butnot the kids hanging out in their lobbies, smoking marijuana, dealing marijuana, the kids hanging out on corners, fighting. in ahe police are difficult situation because for them to respond to the heartfelt , that they order hear again and again in their precinct community meetings, by definition, will generate the racially disproportionate stop and arrest data that can then be
used against them and a.c.l. or even justice department lawsuits. what i have found is that it is who arey to find people across the political spectrum on these very challenging and painful debates that we are having now. jeremy: i guess the question for both of you is, how do we change the debate to a more synergistic one? we can find people who feel that as you do, that we are not looking critically and at that actual results of the policies and that we are kind of -- there is a political correctness to the policy approach. there are other people who feel we still do not get, at least white people, do not get racism. we do not understand what life
andike and has been like thus we are not in a position to really talk about it. and what kinds of remedies would be appropriate. so, i know we are pretty far away from the reconstruction amendments on the but this is all something that happens because of the way reconstruction happens. there were promises made and promises that were not fulfilled. hadley move forward? -- how do we move forward? heather: it is very tough. our history is one of argumentation. and debate. and sometimes, that breaks down and we have had violence. we've had the violence of jim crow. but, i would say, again, and it is easy to invoke fax and easy
to invoke common sense to mean, my common sense. and my fax. but, i would say that let's bring in a different alternative. been able work -- a brutality. that is a history that is hard to move beyond. but, i look around the world -- america today, and what i see is virtually every elite institution in practically every admitss that is eager to as many blacks as possible, that every university has a system of racial preferences that extends both to admissions and to hiring. theme of is a constant
corporate america and of government. is muche, the problem less today about formal or even informal barriers to opportunity, and what we need to that isis the culture ,mpeding too many young especially black, males from taking advantage of the opportunities that are there to them. again, i will say that empirically, one can show that and as much asly one wants to be careful about declaring ourselves effectively free from the poison of our balance, ithink on is time to start speaking, as self-help and
self-discipline, personal responsibility, above all else. jeremy: thank you. professor kennedy? your thoughts? prof. kennedy: i had a thought of anticipation of this discussion. it drove me to a passage in an essay by the great british philosopher and historian of ideas. i will read to in just a moment. i want to go back to what heather said about racial preferences. affirmative action. notoriously vexed and difficult, complicated question. emotionally charged, legally complicated. layers of complexity about it. but, again to take us back to where it began, you might say that our generation's confrontation with the issue of affirmative action and racial preferences is a recapitulation of what has been called the abolitionist dilemma. in the immediate post-civil war time. they had been arguing in the
first half of the 19th century and rightly so, very few people would disagree today, that slavery was a debasing and grading institution that relegated certain people to sub-citizen status and maybe sub-human status. the dilemma was that once these people, black americans, slaves, are emancipated, they had to recognize that they were, in fact, less capable than their fellow white citizens a fully participating in the social life of their society. they were largely uneducated and in many cases the literate. their experience and political participation or social participation. what you do about that? the reconstruction era generation did quite badly with that. they're one effort at a positive intervention to speed up the process of social integration with the freedmen's bureau. it only existed for a few years and the congress refused authorized it and find it going forward.
that effort was very short-lived and failed. affirmative action in our time is kind of an act go of the philosophy that animated the freedmen's bureau. notink, friendly, we may have it exactly right, either, but it we should give ourselves credit for taking the issue on and trying to figure out what is a practical solution to the issue of inequality, especially in a quality rooted in racial difference. from the foursage essays on liberty that to me, is the philosophical rationale behind both the freedmen's bureau of the 1860's and the matter of affirmative action today. he says the following, "to offer political rights or safeguards against intervention by the are halfoen who naked, literate, and underfed and disease, is to mock their condition. what is freedom to those who cannot make use of it?
without adequate conditions for the use of freedom, what is the value of freedom? " the way i would summarize that statement is that we often fetishize freedom. necessary, but by no means wholly sufficient condition for the full social membership of everybody in the society. jeremy: so you need to look at the things that empower and enable people to take advantage of the freedom? prof. kennedy: and that can change over time. jeremy: one of the things that the focus me was that and the founding of these amendments was on property rights. and in reading some histories of the time, that was something that the former slave owners totally got. so, there is a tremendous pushback against the freed slaves owning property. a lot of the black codes were directed at that.
there was terrorism directed at those freed slaves. you sort of see that still being an issue. there was an article this week about the return of redlining and the perception that redlining has been practiced by some of the banks. if that kind of for you are going? it is things like being able to own a home and being able to have a good education and being able to have a good job. omit what you are saying about self-help and personal response ability, but it is sort of all of the a glitch or monza. . heather: again, one has to be humble and be very cautious about saying that a statement like that is meaningful, but less so today. of i would say the doctrine
disparate impact, for example, -- illustrates the fact that courts are hard-pressed to find explicit barriers and todayative discrimination and instead are looking at policies that are neutral on the face but have disparate impact and why do they have disparate arect, it is because there an equal qualifications and social capital today. so, i would say that for me the biggest problem is what is being conveyed in the home. our children being taught to read by their parents? do they have fathers in their home? that, i think, is the greatest
barrier that we have today, which is the gap in children being raised by their parents. there is nothing that is more success andf future whether you come from a single-parent home or a two-parent home. it -- that is not to say that there are thousands of heroic single mothers that are doing the best that they can and are raising children to participate fully in the american experiment, but it is statistically a much harder thing. again, i think redlining may look at on out of sheer the return -- the likelihood of
repaying loans, i do not think banks today are proceeding under racial ms. jeremy: i don't know enough about it to have an opinion. there was some suggestion that where offices were located was somehow affecting people's ability to get loans. i think martha point there is to say that these are things need to talk about and examine and think about. as objectively as we can, without preconceived notions. -- this is the hardest thing to do. is to actually look at the facts having anund without idea of where you think they're going to come out. the facts on the ground that i see is that if you -- let's be honest, if you graduate from high school
and you are black and you have a decent gpa, you have every college in the country beating down your doors to get you to enroll and that is going to continue in law school, business school, and medical school and also in many, many corporations today. i think our focus has to be on making sure that there are more children that are capable of taking advantage of what is, i think, a remarkable turnaround in the attitude of america's elite institutions toward racial equality. and wanting a diverse workforce. jeremy: i think will need to leave it there. there is so much to talk about and we will continue the conversation and our next group. i want to thank heather mcdonald and david kennedy for a great conversation. thank you. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> you're watching american
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